D^DstE^/ 


REPORT 


OF    THE 


fttiririOT    $smmltktf 


TO  WHOM  WAS  REFERRED 

AN  ACT  RELATIVE  TO  THE  LAW  OF  EVIDENCE, 


TO  THE 


SENATE 


OF   THE 


STATE    OF    LOUISIANA 


««s32!G03Q33*b-=- 


BATON  KOUGE: 

J.    M.    TAYLOR,    STATE    PRINTBS, 

1861. 


REPORT 


Mr.  Hunt,  on  behalf  of  the  Judiciary  Committee  of  the  Senate,  to  whom 
was  referred  "  An  act  relative  to  the  Law  of  evidence,"  submitted  the 
followiDg  report : 

At  the  last  annual  session  of  the  Legislature  a  bill  was  introduced  similar 
to  that  now  before  the  Senate,  for  the  amendment  of  the  law  of  evidence  in 
this  State.  It  was  referred  to  the  Committee  on  the  Judiciary,  who  reported 
it  [back  favorably  to  the  Senate,  but  no  further  action  was  had  upon  it. 
They  did  not  press  the  immediate  consideration  of  the  bill,  because  the 
change  which  it  proposed  to  make  in  the  law  of  evidence  is  radical,  and 
overturns  rules  long  established,  and  which,  until  comparatively  a  recent 
date,  received  the  commendation  of  the  ablest  jurists  of  Europe  and  America. 
It  is  true,  the  principles  embodied  in  the  bill  had  been  thoroughly  discussed 
by  Jeremy  Bentham  and  his  followers,  and  had,  under  the  lead  *>f  Lords 
Denman,  Campbell,  Brougham  and  others,  been  successively  adopted  by  the 
British  Parliament  and  made  part  of  the  English  law.  They  had  been  ad- 
vocated with  masterly  ability  by  Edward  Livingston,  in  the  introductory 
report  to  the  Code  of  Evidence,  prepared  under  the  authority  of  a  law  of  the 
State,  passed  in  1822.  They  had  been  adopted,  too,  by  States  of  our  late 
Union,  eminent  for  their  polity  and  the  wise  administration  of  justice.  But 
the  attention  of  the  legislators  and  jurists  of  Louisiana  did  not  appear  to 
have  been  turned  to  the  subject;  and  it  was  deemed  prudent  to  defer  final 
action  upon  the  matter  until  the  present  time. 

The  object  of  the  bill  is  to  render  large  classes  of  persons  competent  to 
testify,  whose  testimony  is  excluded  by  the  existing  law. 

The  law  excludes  the  testimony  of  persons  in  a  case  who  are  interested  in 
its  result. 

It  excludes  the  testimony  of  parties  in  their  own  favor. 

It  excludes  the  testimony  of  husband  and  wife  for  or  against  one  another. 

It  excludes  the  testimony  of  ascendants  and  descendants  in  civil  cases. 

It  excludes  the  testimony  of  persons  who  are  deficient  in  religious  belief. 


It  excludes  the  testimony  of  persons  who  have  been  convicted  of  an 
infamous  offense. 

The  bill  proposes  to  alter  the  law  in  these  particulars,  and  to  receive  the 
testimony  of  the  persons  now  repudiated  as  witnesses ;  leaving  its  value  to 
be  estimated  by  the  judging  power. 

Before  entering  upon  the  examination  of  the  several  provisions  of  the 
bill,  the  committee  desire  to  advert  to  some  general  principles  connected 
with  them  all. 

Every  person  who  institutes  a  suit,  is  bound  to  state  such  facts  as  will 
show  his  claim  to  be  founded  in  law.  The  facts  may  be  either  admitted  or 
denied.  If  admitted,  it  becomes  the  duty  of  the  Court  to  determine  what 
the  law  is  upon  the  facts  j  if  denied,  they  must  be  proved,  and  this  proof 
must  be  made  by  evidence.  The  duty  of  judicial  tribunals  embraces  the 
investigation  of  facts,  as  well  as  the  application  of  the  principles  of  law  to 
such  as  are  ascertained.  Law,  indeed,  can  be  administered  only  on  the  as- 
sumption of  the  truth  of  the  facts  to  which  it  is  applied. 

The  object  of  evidence  is  the  establishment  of  truth.     Courts  of  Justice 
employ  the  same  means  of  investigating  and  determining   disputed  facts,  as 
mankind  in  general  make  use  of — except  so  far  as  positive  laws  interfere.  It 
has  been   truly  said,   that  the   organization  of  Courts,  the   enumeration  of 
rights,  the  means  of  asserting  them,  the   denunciation   of  penalties  for  in- 
fringing them,  and  the  rules  of  procedure   are  only  preparatory  steps  to  the 
trial,  which  in  itself  is  but  the  examination  of  evidence.     So  that  ultimately 
the  whole  machinery  of  jurisprudence  in  all  its  branches,  is   contrived  for 
the  purpose  of  enabling  the  judging  power  or  tribunal  to  determine  on  the 
truth  or  falsehood  of  every  litigated  statement.     This   can   only  be  done  by 
hearing  and  examining  everything  that  will  contribute  to  bring  the  mind  to 
the  determination.     If  we  refuse   to  hear  anything  that  will  produce  the 
effect,  we  determine  on  imperfect  evidence,  and  of  course  are  subjected  to 
the  chance  of  making  an  erroneous  decision.     All  exclusions  of  evidence, 
are,  therefore,  injurious  to  the  object  of  all  investigation — the  discovery  of 
truth.     In  the  ordinary  affairs  of  life,  in  the  investigation  of  truth,  no  evi- 
dence is  rejected.     Suppose  you  wish  to  inquire  concerning  some  delinquence 
that  has  occurred  in  your  house,  and  that  you  have  an  inmate  who  saw  what 
occurred ;  would  you  refuse   to  ask  him   any  questions  or  to  hear  him,  be- 
cause you  know  he  has  been  heretofore  guilty  of  lying  ?     No,  you  would 
hear  his  statement,  and,  allowing  for  his  propensity,  judge  whether  it  affec- 
ted him  in  the  case  before  you.     In  all  other  matters  of  inquiry  and  investi- 
gation, everything  is  examined,  every  one  is  heard,  and  he  who  is  to  judge, 
relies  upon  his  own  power  to  discriminate.     In  law  alone  he  is  taught  to 
distrust  that  power,  and  to  reject  all  evidence  that  may  possibly  lead  him 
astray.     Is  this  reasonable  ? 

To  this  question  the  [common  and  the  civil  lawyers  answer  "  yes/'  and 


extol  the  wisdom  of  the  rules  which  exclude  the  testimony  of  certain  classes 
of  persons.  In  this  respect,  they  argue,  "  The  law  follows  the  common  ex- 
perience of  mankind.  The  purposes  of  justice  require  that  such  evidence 
as  is  more  likely  than  otherwise  to  mislead  should  be  excluded.  If  this 
were  not  the  case,  a  witness,  unworthy  of  credit,  might  often  receive  as 
much  consideration  as  one  worthy  of  the  fullest  confidence.  We  must, 
therefore,  guard  against  incorrect  decisions  by  the  absolute  rejection  of  per- 
sons whose  testimony,  either  from  interest  in  the  matter  in  dispute  or  any 
other  visible  cause,  seems  likely  to  prove  untrustworthy." 

On  the  other  hand,  it  is  contended  that  no  kind  of  evidence,  whatever, 
capable  of  throwing  light  on  the  question  agitated,  ought  to  be  rejected, 
unless  its  exclusion  can  be  justified  by  the  inconvenience  and  expense  of 
obtaining  it,  or  by  the  vexation  and  delay  that  would  attend  it.  In  illustra- 
tion of  the  latter  part  of  this  proposition,  the  following  case  has  been  put : 
"  By  laying  a  barrow  full  of  rubbish  on  a  spot  on  which  it  ought  not  to  have 
been  laid,  (the  side  of  a  turnpike  road,)  Titius  has  incurred  a  penalty  of  5  s. 
No  man  was  witness  to  the  transaction  but  Sempronius;  and  in  the  station 
of  writer,  Sempronius  is  gone  to  make  his  fortune  in  the  East  Indies. 
Should  Sempronius  be  forced,  if  he  could  be  forced,  to  come  back  from 
the  East  Indies  for  the  chance  of  subjecting-  Titius  to  this  penalty  ?  Who 
would  think  of  subjecting  Titius  to  this  vexation  ?  Who  would  think  of 
subjecting  Sempronius  or  anybody  else  to  this  expense  ?"  It  is  obvious 
that  the  vexation,  expense,  and  delay  in  obtaining  the  testimony,  would 
amount  to  a  preponderant  evil,  and  justify  its  exclusion.  But  it  is  insisted 
that  where  this  is  not  the  case,  all  objections  to  the  admissibility  of  a  wit- 
ness should  be  at  once  annihilated  and  classed  under  objections  to  his 
credibility,  varying  according  to  circumstances ;  that  in  many  cases  the 
excluding  of  a  casual  witness  to  a  fact  would  be  to  exclude  all  attainable 
evidence  on  the  question  in  dispute,  and  offer  by  impunity  a  premium  to 
dishonesty,  fraud,  and  crime.  If  it  be  said  that  owing  to  unsoundness  of 
mind,  deficiency  of  religion,  antecedent  misconduct,  or  personal  interest, 
the*evidence  is  likely  to  prove  unsafe  ;  the  answer  is,  that  any  line  drawn 
on  the  subject  must  be  in  the  highest  degree  arbitrary.  It  is  impossible 
to  enumerate  a  priori  the  causes  which  may  distort  or  bias  the  minds  of 
men  to  pervert  or  misstate  the  truth,  far  more  to  estimate  their  weight  in 
each  individual  case,  or  with  each  individual  person.  This  is  the  settled 
opinion  of  the  ablest  English  writers  and  jurists,  after  a  careful  examina- 
tion of  the  arguments  concerning  the  incompetency  of  witnesses  and  a 
practical  experience  of  years  ;  and  the  opinion  is  well  founded. 

Let  us  consider  the  matter.  For  what  purpose  does  the  Court  sit  ?  To 
decide  correctly  the  cause  before  it.  What  then  is  the  evil  to  be  guarded 
against?  Erroneous  decision,  or  il misdecision,"  as  Bentham  calls  it, 
produced  by  false  testimony.    Now,  the  testimony  offered  and  rejected  was 


6 

either  necessary  to  the  cause  of  the  party  producing  it,  or  it  was  not  abso- 
lutely necessary. 

First,  suppose  it  necessary — the  party  offering  it  having  no  other  testi- 
mony to  establish  his  right.  It  is  plain,  in  that  case,  that  by  excluding 
it,  you  certainly  produce  an  erroneous  decision,  for  fear  of  a  possible 
erroneous  'decision  from  false  testimony,  "as  a  panic-struck  bird  is  said 
to  fly  into  the  serpent's  mouth,  or  as  a  man  jumps  overboard  for  fear  of 
being  drowned."  If  the  testimony  be  admitted,  you  may  be  on  your  guard 
and  correct  the  evil.  If  it  be  rejected,  there  is  no  alternative.  Misdecisiou 
is  inevitable  if  testimony,  without  which  a  just  decision  cannot  be  had,  be 
rejected.  You  ower]  a  thousand  dollars  ;  you  paid  it  in  the  presence  of 
Primus ;  Primus  is  convicted  of  an  offense  destroying  his  competence  to 
testify  ;  his  testimony  is  rejected  ;  you  lose  your  cause.  Could  more  in- 
justice be  done  if  he  were  admitted  ?  False  testimony  is  given  every  day 
in  some  cause  or  other;  cross-examination,  or  counter  testimony  almost 
invariably  corrects  it.  The  opposite  party,  the  counsel,  the  judge,  the  jury 
are  all  on  their  guard,  and  it  is  nearly  impossible  for  perjury,  suspected  be- 
forehand, to  succeed. 

Suppose  next,  the  evidence  excluded  to  be  not  absolutely  necessary, 
because  the  party  offering  it  has  other  testimony.  If  the  decisien  be  given 
on  that  other  testimony,  the  exclusion  can  produce  no  beneficial  influence 
on  the  decision  of  the  cause;  it  only  puts  the  party  to  expense  to  procure 
different  evidence.  A  witness  knowing  the  suspicions  concerning  him  and 
how  much  every  one  is  on  the  alert  to  convict  him  of  falsehood,  would 
not  commit  perjury  gratuitously.  If  he  have  any  special  motive  to  bear 
false  testimony,  this  motive  is  extraneous  to  the  legal  motive  for  rejecting 
him.  Even  from  a  witness,  'desirous  of  deceiving,  examination  and  cross- 
examination  will  generally  elicit  useful  truths.  Mr.  Best  says:  "  We  have 
read  somewhere  of  a  whole  nation  who  purposely  gave  false  answers  to  all 
questions  respecting  the  topography  of  their  country.  Still  a  traveler  was 
enabled  to  ascertain  it,  by  questioning  upon  incidental  facts,  when  the 
truth  naturally  oosing  out,  supplied  him  with  materials  for  arriving  at  the 
knowledge  sought." 

The  rules  of  evidence  by  which  our  Courts  are  governed,  have  been 
borrowed  in  a  great  part  from  the  English  law.  In  revising  the  Civil 
Code  in  1825,  it  was  intended  to  prepare  a  separate  code  of  evidence. 
But  this  has  not  been  done,  and  our  Civil  Code  contains  only  some  general 
leading  principles  of  evidence  in  civil  cases.  On  the  subject  of  exclusion, 
which  is  now  under  consideration,  the  systems  materially  differ,  and  are 
more  or  less  uncertain  in  their  provisions. 

Various  classes  of  persons  were  rejected  kby  the  civilians  of  medieval 
Europe  and  by  the  old  English  lawyers,  upon  the  ground,  the  giving  evi- 
dence in  a  Court  of  justice  is  a  right  rather  than  a  duty,  and  consequently 


that  incompetency  to  testify  is  a  fitting  punishment  fur  matters  to  which 
the  law  is  desirous  of  attaching  the  stigma  of  disgrace. 

The  ancient  practice  in  England  affixed  the  brand  of  incompetency  to 
holding  obnoxious  opinions  ;  thus  not  only  punishing  the  delinquent,  but 
inflicting  ruin  on  a  party  to  a  suit  whose  life,  property  or  honor  might  be 
saved  by  the  evidence  of  the  rejected  witness. 

There  can  be  no  doubt  that  this  principle  was  borrowed  from  the  civil 
law  of  the  middle  ages. 

In  that  law,  the  list  of  persons  liable  to  be  rejected  as  incompetent  to 
bear  testimony  was  exceedingly  large.  In  some  instances  entire  classes 
were  rejected.  The  celebrated  Constitution  of  the  Greek  Emperor  Anas- 
tasius,  declared  that  Pagans,  Manichfeans,  and  members  of  some  other 
sects  were  disqualified  from  giving  evidence  under  any  circumstances  ; 
while  heretics  and  Jews  were  only  allowed  to  do  so  in  causes  in  which  they 
were  parties,  and,  except  in  peculiar  cases,  could  not  bear  testimony 
against  orthodox  christians.  Similar  principles  prevailed  in  the  canon 
law. 

The  law  of  ancient  Home  refused  the  testimony  of  women  in  certain 
cases,  and  the  civil  and  canon  laws  in  the  middle  ages  carried  the  exclusion 
further.  In  Scotland,  until  the  beginning  of  the  eighteenth  century,  sex 
was  a  cause  of  exclusion  in  the  great  majority  of  cases.  Even  the  old  Eng. 
lish  lawyers  occasionally  rejected  the  evidence  of  women,  on  the  ground, 
^  they  are  frail."  The  Teason  is  not  unlike  that  of  the  civil  law  which  is 
said  to  be  "because  women  are  usually  frauduUntae,  faUaces,  et  dofosac," 
or  the  reason  assigned  by  the  doctors  of  the  canon  law,  who  declared,  in 
the  language  of  Virgil,  " varivm  ct  mvtahilr,  semper  frmina"  Undoubt- 
edly there  were  many  exceptions  to  these  rules.  But  even  after  women  had 
been  admitted  to  bear  testimony  in  France,  their  evidence  was  not  considered 
equivalent  to  that  of  a  man  j  and  it  seems  to  have  been  a  principle  that  a 
virgin  was  entitled  to  greater  credit  than  a  widow — "  mm/h  n-editvr  tofrgini 
(jv.ctni  vidua\" 

Under  the  civil  law  system,  all  questions  of  law  and  fact  were  decided  by 
a  single  judge.  The  examination  of  witnesses  was  secret,  and  was  made  by 
judges  unacquainted  with  the  circumstances  of  the  case,  without  confronta- 
tion, personal  cross-examination,  or  publicity ;  the  parties  themselves  were 
not  allowed  to  be  present.  Under  such  a  system,  the  difficulty  of  detecting 
falsehood  afforded  a  plausible  pretext  for  an  extended  prohibition  of  sus- 
pected witnesses,  though  nothing  can  give  a  colorable  excuse  for  the  enor- 
mous extent  to  which  it  was  carried. 

How  different  is  the  common  law  system  and  our  own  !  Under  these, 
the  evidence  of  witnesses  is  given  viva  voce,  in  presence  of  the  party  against 
whom  they  are  produced,  and  he  is  allowed  to  cross-examine  thfun.  The 
great  tests  of  the  truth  of  a  narrative,  are  the   consistency  of  its  several 


8 

parts  and  the  probability  of  the  matters  narrated.  Stories  entirely  false  are 
comparatively  rare :  it  is  by  misrepresentation,  suppression  of  some  things, 
and  addition  of  others,  that  a  false  coloring  is  given  to  the  acts  of  men ;  and 
it  is  only  by  a  searching  inquiry  into  the  surrounding  circumstances  that  the 
whole  truth  can  be  brought  to  light.  The  party  against  whom  false  testi- 
mony is  directed,  is  interested  in  exposing  it,  and  is  the  person  best  acquain- 
ted with  the  facts  as  they  really  have  occurred,  and  is,  therefore,  most  a"ble 
to  furnish  means  for  the  detection  of  the  falseness  of  the  testimony.  Be- 
sides, it  is  very  difficult  for  a  witness  to  conic  prepared  with  his  story  to 
meet  every  question  which  may  be  put  to  him  suddenly  on  a  cross-examina- 
tion. And  further,  what  is  perhaps  of  still  greater  importance,  courts  of 
justice  are,  by  the  common  law  and  by  the  law  of  Louisiana,  open  to  all. 
The  publicity  of  the  examination  of  the  witness,  operates  as  a  cheek  upon 
mendacity  and  incorrectness.  Environed,  as  he  sees  himself,  by  a  thousand 
eyes,  contradiction,  should  he  hazard  a  false  tale,  will  seem  ready  to  rise  up 
in  opposition  to  him,,  from  a  thousand  tongues.  Many  a  known  lace,  and 
many  an  unknown  one,  presents  to  him  a  possible  source  of  detection,  from 
whence  the  truth  he  is  struggling  to  suppress,  may,  through  some  unsus- 
pected channel,  burst  forth  to  his  confusion. 

Under  such  a  system,  the  principle  of  exclusion  is  wholly  misplaced.  Ac- 
cordingly, the  inclination  of  modern  judges  and  lawgivers  in  England  and 
the  North  American  States,  is  in  favor  of  receiving  the  testimony  of  wit- 
nesses— leaving  its  value  to  be  properly  estimated. 

The  Committee  might  rest  content  with  this  general  statement  of  the 
argument  in  favor  of  the  bill :  but  they  will  proceed  to  examine  more  par- 
ticularly the  grounds  on  which  the  several  clauses  of  the  bill  are  based. 
And  first — the  law  excludes  the  testimony  of  persons  who  are  interested  in 
the  result  of  the  suit.  The  rule,  it  is  said,  is  founded  on  the  known  infirmi- 
ties of  human  nature,  which  the  law  deems  too  weak  to  be  generally  re- 
strained by  religious  or  moral  obligations,  when  tempted  and  solicited  in  a 
contrary  direction  by  temporal  interests.  Its  object  is  to  guard  against  the 
danger  of  perjury,  and  to  shut  out  testimony  unworthy  of  credit  in  judicial 
investigations.  "There  is,"  said  Lord  Chief  Baron  Gilbert,  "from  the 
nature  of  human  passions  and  actions,  more  reason  to  distrust  such  biased 
testimony  than  to  believe  it." 

The  principle  upon  which  the  rule  rests  is  altogether  unfounded.  It 
assumes  that,  in  the  great  majority  of  instances,  men  are  so  corrupt,  that, 
from  a  mere  regard  to  their  interest — however  small  that  interest  may  be — 
they  will  violate  the  duties  of  morality  and  religion,  and  run  the  risk  of 
incurring  the  penalties  of  the  law  by  committing  perjury;  for  the  chance  of 
imposing  upon  the  judge  and  jury,  after  counter  testimony  and  strict  cross- 
examination,  before  the  public,  in  open  court,  where  every  one  who  hears 
them  testify  is  aware  of  their  bias,  and  on  his  guard  against  deception  by 


9 

false  testimony :  For  although  other  strong  motives  to  produce  mendacity 
may  be  secret,  yet  interest — pecuniary  motive — before  it  can  render  a  wit- 
ness incompetent,  must  be  proved  and  known  to  the  court  and  jury.  The 
assumption  is  contrary  to  all  experience.  In  general,  witnesses  are  honest, 
however  much  interested;  and  in  most  cases  of  dishonesty,  the  falseness  of 
the  testimony  is  detected  and  misleads  none. 

Let  it  be  remembered  that  the  great  object  to  which  all  the  rules  of  evi- 
dence should  be  directed  is  the  discovery  of  truth  :  and  that  the  only  ques- 
tion is,  will  the  object  be  better  effected  by  the  admission  or  by  the  exclu- 
sion of  the  witness  ?  No  one  who  has  an  enlarged  knowledge  of  human 
nature,  or  any  respect  for  the  society  in  which  he  lives,  would  hesitate  to 
admit  the  witness. 

Undoubtedly,  interest  may  be  a  motive  with  some  persons  for  mendacity 
and  perjury,  but  its  influence  varies  upon  different  persons.  The  amount  of 
the  interest,  the  condition  of  the  witness,  his  standing  in  society,  his  fortune, 
education,  sensibility,  and  other  circumstances,  may  effect  and  control  the 
influence.  Who  can  believe  that  the  loss  or  gain  of  five  dollars  would  have 
effected  the  testimony  of  George  Washington  or  of  John  Marshall  ?  On  the 
other  hand,  suppose,  with  Mr.  Bentham,  an  ill-educated  laborer,  with  a  wife 
and  children  on  the  point  of  starving :  is  there  any  analogy  between  the 
cases  ? 

Now  the  truth  is  secured  among  men  in  their  mutual  intercourse  by 
powerful  sanctions  or  guarantees  :  1st.  By  the  natural  sanction,  which  is  a 
sort  of  instinct  that  impels  man  to  speak  the  truth  and  makes  him  do  vio- 
lence to  himself  whenever  he  betrays  it  and  injures  another.  2d.  By  the 
moral  or  popular  sanction,  which  punishes,  with  disgrace,  the  liar.  3d.  By 
the  religious  sanction,  which  is  founded  on  the  dread  of  future  punishment. 
And  4th.  By  the  legal  sanction,  which  punishes  false  testimony  in  a  judicial 
proceeding,  and  renders  it  difficult  to  devise  a  falsehood  that  will  pass  ex- 
amination in  a  court  of  justice.  All  these  sanctions  are  in  continual  opera- 
tion to  secure  the  truth  of  testimony  before  the  courts.  If  it  be  admitted 
that  men  may  occasionally  be  found,  in  whom  motives  of  interest  preponder- 
ate over  the  powerful  restraining  motives  just  enumerated,  it  cannot  be 
denied  that  they  constitute  a  very  small  number  in  comparison  with  those 
to  whom  the  interest  is  too  trifling  to  be  an  object  compared  to  their  for- 
tune and  situation  in  life, — those  who  under  the  influence  of  a  strong 
interest,  would  be  restrained  by  the  stronger  motives  of  religion  or  morality, — 
those  who  would  be  deterred  by  the  fear  of  shame  or  of  punishment, — 
and  those  who,  without  these  restraints,  find  their  hearts  to  fail  them  from 
the  difficulty  of  framing  false  testimony  so  as  to  give  it  the  semblance  of 
truth. 

Ought  we  then  to  exclude  the  numerous  interested  witnesses  who  would 

2  j  q 


10 

tell  the  truth,  because  a  few  interested  would  commit  perjury  at  the  risk  of 
detection  and  punishment  ? 

Remember,  the  law  has  drawn  no  line  of  pecuniary  interest :  it  makes  no 
distinction  between  interests  of  different  amounts,  or  between  interested 
witnesses  of  different  characters :  it  quite  overlooks  the  ratio  between  the 
sum  in  question  and  the  pecuniary  circumstances  of  the  witness.  No  matter 
what  the  amount  of  interest  is — one  cent,  one  dollar,  one  hundred,  one 
thousand,  one  million,  the  effect  is  the  same,  the  witness  is  excluded.  It  is 
true,  the  interest  appears,  and  if  the  law  would  permit  the  witness  to  be 
heard,  his  testimony  might  be  weighed  and  his  motives  judged.  But  no: 
by  the  law  of  exclusion  for  pecuniary  interest,  a  ceut  may  render  a  man 
venerated  for  his  holy  life,  of  the  highest  sense  of  honor,  and  worth  a. 
million  of  dollars,  a  witness  too  suspicious  to  be  credited  on  his  oath.  xVnd 
this  is  law:  "  Founded,"  says  Lord  Erskine,  "in  the  charities  of  religion, 
in  the  philosophy  of  nature,  in  the  truths  of  history,  and  in  the  experience 
of  common  life." 

Who  is  the  person  suffering  ?  The  innocent  suitor.  Suppose  the  ex- 
cluded testimony  necessary  to  save  the  character  or  life  of  the  party  offering- 
it.  One  man  is  presumed  to  be  a  perjurer,  and,  therefore,  another  man  is 
disgraced  for  life  or  punished  with  death. 

Our  law  excludes,  in  civil  cases,  all  persons  from  testifying  who  are  inter- 
ested, directly  or  indirectly,  in  the  result  of  the  suit.  This  is  imperatively 
expressed  in  Article  2,260  of  the  Civil  Code.  But  our  courts  have,  by  a 
lono-  series  of  decisions,  adopted  the  English  rule,  and  excluded  only  those 
who  are  directly  interested :  they  have  admitted  all  the  exceptions  contained 
in  the  English  law.  Now  the  interest  which  excluded  at  common  law,  was 
a  leo-al  interest — that  is,  a  direct  certain  interest  in  the  event  of  the  case,  or 
an  interest  in  the  record  for  the  purposes  of  evidence,  however  minute  that 
interest  may  have  been.  This  rule,  so  wide  and  extensive  in  its  terms,  gave 
rise  to  constant  questions  and  doubts,  and  the  courts  gradually  relaxed  it 
by  making  numerous  and  important  exceptions  to  it,  irreconcilable  with  the 
principle  of  the  rule  itself.  Thus,  a  certain  legal  interest,  to  the  amount  of 
a  dollar  excludes;  a  contingent  interest,  to  the  amount  of  a  million,  is  un- 
noticed. The  consequence  is,  that  parties  are  often  competent  to  give  evi- 
dence who  are  swayed  by  the  strongest  moral  interest  to  pervert  the  truth. 
Again,  a  factor,  or  any  other  agent,  who  is  to  receive  a  commission  on  the 
amount  of  a  contract  or  sale,  was  declared  a  competent  witness  to  prove  the 
sale  or  contract  for  his  principal.  A  servant,  employed  to  deliver  goods  to 
a  purchaser;  or  a  clerk,  employed  to  pay  money  to  a  creditor,  is  a  good 
witness  to  prove  the  delivery,  or  the  payment,  as  the  case  may  be.  But  if 
the  cause  depend  on  the  question,  whether  the  agent  or  servant  has  been 
o-uilty  of  neglect  or  misconduct,  he  is  not  a  competent  witness  for  his  prin- 
cipal without  a  release,  because  he  is  liable  over.     Cases,  without  number, 


li 

of  a  similar  character,  might  be  cited,  wherein  the  disqualification  from 
interest  was  found  so  inconsistent  with  public  policy,  as  to  cause  constant 
inroads  to  be  made  upon  the  principle  of  exclusion.  These  cases  are  fre- 
quently entirely  contradictory  to  each  other,  or  supported  by  decisions 
abounding  in  flimsy  and  subtle  distinctions,  and  occasionally,  by  their  con- 
trariety, creating  much  legal  doubt.  In  order  to  meet  the  difficulty,  various 
expedients,  by  means  of  release,  etc.,  were  resorted  to,  for  the  purpose  of 
restoring  the  competency  of  interested  witnesses.  Speaking  of  release, 
Lord  Brougham,  then  Mr.  Brougham,  in  his  celebrated  speech  on  law 
reform,  in  the  House  of  Commons,  in  1828,  said:  u  Evidence  is  thus  often 
cooked  up  for  the  court,  nay,  in  the  court,  while  the  witness  is  in  the  box, 
which,  according  to  the  existing  rules,  is  not  admissible,  without  this  pro- 
cess of  release.  Now,  what  is  the  real  effect  of  the  release  on  the  mind  of 
the  witness  ?  Just  nothing :  for  if  he  be  an  honorable  man,  he  gives  it  up 
the  moment  he  leaves  the  box,  and  while  swearing  he  knows  that  he  is  to 
do  so." 

The  courts  in  England  still  further  relaxed  the  rule  of  exclusion  in  the 
case  of  Bent  vs.  Baker,  in  which  it  was  decided  that  in  an  action,  one  un- 
derwriter of  a  policy  was  a  competent  witness  for  another  underwriter  of 
the  same,  even  though  his  evidence  substantially  settled  the  case  as  to 
both.  Without  dwelling  further  upon  the  decisions  of  the  courts,  it  will 
suffice  to  observe  that  the  practical  inconvenience  of  so  extensive  an  ex- 
clusion of  witnesses  as  that  on  the  ground  of  interest  being  found  intolera- 
ble, Parliament  at  length  interfered,  and  in  1834,  by  the  Statute  3d  and 
4th,  William  the  IV  rendered  competent  the  whole  class  of  witnesses  ex- 
cluded by  an  interest  in  the  record  as  an  instrument  of  evidence ;  but  pro- 
vided that  the  record  should  not  be  admissible  in.  evidence  in  another 
cause,  for  or  against  such  witnesses.  It  would  seem  that  this  statute  in- 
troduced no  new  principle,  but  merely  removed  the  interest  which  would 
otherwise  have  disqualified  the  witnesses,  like  the  notable  expedient  of  a 
release  described  by  Brougham. 

But  this  was  superseded  in  1843,  by  the  Statute  6th  and  7th,  Victoria 
85,  commonly  known  by  the  name  of  Lord  Denman's  Act.  After  reciting 
that  "  the  inquiry  after  truth  in  courts  of  justice  was  often  obstructed  by 
incapacities  created  by  the  present  law,  and  it  was  desirable  that  full  infor- 
mation as  to  facts  in  issue,  both  in  criminal  and  civil  cases,  should  be  laid  be- 
fore the  persons  appointed  to  decide  upon  them,  and  that  such  persons  should 
exercise  their  judgment  on  the  credit  of  the  witnesses  adduced,  and  on  the 
truth  of  their  testimony,  it  enacted:  that  no  person  offered  as  a  witness 
shall  be  excluded,  by  reason  of  incapacity  from  interest,  from  giving 
evidence  in  any  cause,  except  in  certain  cases  therein  afterwards  specified." 
At  length  came  Lord  Campbell's  Act,  14th  and  15th,  Victoria,  C.  99, 
August,  1851,  to   amend  the   law  of  evidence,  which   has  effectually  ex- 


12 

punged  from  English  Jurisprudence,  the  title  incompetency  of  witnesses 
from  interest. 

The  example  of  England  has  been  followed  in  the  States  of  America 
very  generally.  In  Connecticut,  New  York,  Ohio,  Massachusetts,  Mis- 
sissippi and  other  States. 

The  Committee  conclude  their  report  on  this  portion  of  the  bill  by 
citing  the  uniform  testimony  of  the  English  lawyers  upon  the  subject, 
who  declare  that  "  of  all  the  acts  in  their  statute  book,  these  which  ren- 
der interested  witnesses  competent,  contain  in  the  smallest  compass  the 
greatest  amount  of  good.  They  settle  the  law  upon  an  intelligible,  rea- 
sonable and  satisfactory  basis  ;  put  an  end  to  some  of  the  most  intricate 
perplexities  of  the  law,  and  reject  a  principle  which  was  unsound  in  theory, 
and  in  practice  often  led  to  results  most  unfavorable  to  the  due  adminis- 
tration of  justice." 

The  time  has  come  when  Louisiana  should  act  upon  this  matter,  and 
gaining  wisdom  from  the  experience  of  others,  admit  the  evidence  of  inter- 
ested witnesses  without  exception,  leaving  the  weight  of  the  evidence  to 
be  determined  by  the  judging  power. 

The  Committee  will  next  proceed  to  the  consideration  of  the  provision 
in  the  bill  for  the  repeal  of  the  rule  which  excludes  the  testimony  of  the 
parties  in  a  civil  suit.  This  exclusion  is  substantially  embraced  in  that 
which  has  just  been  considered.  It  rests  upon  the  ground  that  it  removes 
the  temptation  to  perjury,  and  secures  judicial  tribunals  from  being  de- 
ceived by  false  testimony  and  led  into  erroneous  decisions. 

To  a  certain  extent  our  present  law  has  repudiated  this  argument.  It 
allows  one  party  to  the  suit  to  examine  the  adverse  party.  A  plaintiff'  may 
interrogate  the  defendant,  and  the  defendant  the  plaintiff.  The  bias  of  a 
party  in  his  own  favor  is  known,  and  every  corrective  is  ready  to  be  used 
against  him ;  cross-examination,  counter  evidence,  publicity,  experienced 
counsel,  judge,  and  jury.  Surely  there  can  be  no  great  danger  of  being- 
misled  by  false  testimony  under  such  circumstances. 

There  are  two  defects  in  our  present  law  upon  the  subject.  The  first 
consists  in  the  mode  of  examining,  and  in  the  effect  given  to  the  evidence  ; 
the  second  in  not  allowing  a  party  to  be  examined  whenever  he  himself 
chooses.  The  parties  are  generally  those  best  acquainted  with  the  facts 
of  the  case,  and  best  able  to  state  them.  If  it  be  desirable  to  hear  them, 
there  can  be  no  reasonable  objection  to  extract  from  them  the  whole  truth 
by  a  public  examination  in  the  same  way  as  we  extract  truth  from  other 
witnesses.  The  testimony  of  every  witness  should  be  left  to  have  that 
•weight  which  his  character  or  other  circumstances  justly  entitle  it  to.  The 
declaration  of  a  party  may  not  be  believed  by  the  judge  and  jury.  He  is 
certainly  a  suspicious  witness,  and  yet  the  law  declares  that  his  oath  shall 
be  conclusive,  unless  contradicted  by  two  witnesses,  or  one  witness  corrob- 


13 

orated  by  circumstances  or  written  proof.  The  true  rule  is  to  put  his  tes- 
timony on  a  footing  with  that  of  any  other  witness. 

The  exclusion  of  a  party's  testimony  in  his  own  favor  strikes  at  the 
great  principle  of  legal  evidence,  that  the  best  evidence  should  be  adduced. 
It  renders  inferior  evidence  necessary,  at  the  hazard  of  delay,  vexation, 
and  expense  ;  parties  generally  knowing  most  about  the  matter  in  dispute. 

Why  should  a  party  be  deprived  of  the  right  of  being  heard,  of  clearing 
up  doubts,  and  rectifying  errors  which  may  have  been  produced  by  the 
inattention  or  design  of  witnesses,  or  the  ambiguity  of  other  evidence? 
Why  exclude  that  which  is  calculated  to  throw  most  light  upon  the 
subject  ? 

The  rule  of  exclusion  is  broken  in  upon  in  all  motions  upon  affidavit — an 
affidavit  drawn  by  his  lawyer,  and  heard  without  cross-examination  ;  in 
the  affidavit  to  hold  to  bail  ;  in  the  affidavit  to  attach,  and  in  the  affidavit 
to  sequester  property  ;  in  the  affidavit  for  an  injunction,  and  in  the  vari- 
ous affidavits  used  in  the  progress  of  a  cause.  It  is  broken  in  upon  in  the 
oath  in  litem,  first  in  cases  where  the  party  against  whom  it  is  offered  has 
fraudulently  or  unwarrantably  intermeddled  with  the  plaintiff's  goods,  and 
no  other  evidence  can  be  had  of  the  amount  of  the  damages ;  and  second, 
when  on  grounds  of  public  policy  it  is  deemed  essential  to  the  purposes 
of  public  justice.  In  a  word,  the  exceptions  are  so  numerous  that  the 
rule  itself  serves  only  the  purposes  of  deception  ;  it  no  longer  prevails  in 
England. 

Shortly  after  the  passing  of  Lord  Denman's  act,  the  statute  for  the  estab- 
lishment of  County  Courts,  which  superseded  a  large  number  of  minor 
tribunals  in  England,  was  promulgated.  It  provided  that  parties  in  those 
new  Courts  should  be  witnesses  on  either  side.  This  was  not  an  innova- 
tion, for  the  old  Court  of  Conscience  and  Court  of  Requests,  contained 
similar  provisions.  By  the  old  bankruptcy  acts,  passed  under  James  I, 
every  bankrupt  was  made  a  competent  witness  in  relation  to  the  bank- 
ruptcy, and  this  principle  is  incorporated  into  the  present  bankrupt  law  of 
England. 

By  far  the  greater  portion  of  the  numerous  demands  recoverable  in  the 
County  Courts  were  recoverable  in  the  Superior  Courts.  In  the  former, 
the  evidence  of  the  party  weighed ;  in  the  latter,  it  was  deemed  wholly 
unworthy  of  trust.  It  thus  appeared  as  if  the  Superior  Courts  had  less 
efficacious  means  of  testing  the  truth  of  evidence  and  detecting  falsehood 
than  the  inferior  tribunals.  The  plaintiff,  (who  had  his  option  as  to  where 
he  would  sue,)  if  his  own  testimony  would  be  adverse,  or  he  knew  the  evi- 
dence of  the  defendant  would  establish  the  defense,  sued  in  the  Superior 
Court,  and  excluded  the  evidence.  The  jurisdiction  of  County  Courts  hav- 
ing been  considerably  enlarged,  and  the  evidence  of  parties  having  proved 
beneficial  to  the  administration  of  justice,  it  was  deemed  unreasonable  to 


14 

preserve  a  distinction  between  the  rules  of  evidence  in  the  tribunals.  By 
the  act  to  amend  the  law  of  evidence,  passed  7th  August,  1851,  14th  and 
15th  Vict.  C.  99,  all  the  parties  to  a  suit,  and  those  in  whose  behalf  a 
suit  is  brought,  are  admissible  witnesses,  on  behalf  of  either  or  any  of  the 
parties  to  the  suit. 

The  Committee  have  felt  and  still  feel  much  doubt  whether  this  princi- 
ple should  be  extended  to  criminal  cases.  They  are  inclined  to  think  the 
provision  in  Lord  Brougham's  act,  which  declares  that  no  person  shall  be 
compelled  to  criminate  himself,  or  to  give  evidence  against  himself  upon 
any  charge  brought  against  him  for  a  criminal  offense — is  founded  in 
philosophy  as  it  is  undoubtedly  in  clemency.  They  have,  therefore,  re- 
tained the  provision  in  the  bill  before  the  Senate. 

By  our  code,  as  well  as  under  the  common  law,  the  rule  by  which 
parties  are  excluded  from  beiug  witnesses  for  themselves,  applies  to  the 
case  of  husband  and  wife;  neither  of  them  being  admissible  as  a  witness 
in  a  cause,  civil  or  criminal,  in  which  the  other  is  a  party,  or  has  interests 
involved.  The  exclusion  is  founded  partly  on  their  legal  identity,  and 
partly  on  public  policy,  which  requires  that  the  confidence  between  hus- 
band and  wife  should  be  sacredly  protected  and  cherished  as  the  best 
solace  of  human  existence. 

The  Committee  have  stated  this  exclusionary  rule  and  the  reasons 
assigned  for  it  in  the  language  of  Mr.  Greenleaf.  If  the  rule  were  limited 
to  the  protecting  from  disclosure  matters  communicated  in  nuptial  confi- 
dence, or  facts,  the  knowledge  of  which  has  been  acquired  in  consequence 
of  the  relation  of  husband  and  wife,  the  Committee  would  not  recommend 
its  repeal:  but  it  is  an  absolute  prohibition  of  the  testimony  of  the  wit- 
ness to  any  facts  affecting  the  husband  or  wife,  as  the  case  may  be,  how- 
ever the  knowledge  of  these  facts  may  have  been  acquired.  The  rule  only 
applies  where  the  husband  or  wife  is  party  to  the  suit,  and  does  not  extend 
to][a  collateral  suit  between  third  parties.  And  the  declarations  of  a  wife, 
acting  as  the  agent  of  her  husband,  are  evidence  against  him,  like  the 
declarations  of  any  other  agent. 

The  exceptions  to  the  rule  are  important.  In  cases  where  a  personal 
injury  is  threatened  or  inflicted  by  one  on  the  other,  the  law  does  not 
allow  the  legal  identity  of  husband  and  wife  to  supersede  the  great 
principle  that  the  State  is  bound  to  protect  the  life  and  limbs  of  its  citi- 
zens; and  it  generally  happens  that  offenses  of  this  kind  cannot  be  proved 
without  the  evidence  of  the  injured  party.  In  such  cases,  therefore,  the 
injured  husband  or  wife  may  testify  against  the  other.  And  yet,  with 
what  has  been  called  "a  cruel  absurdity,"  in  a  case  of  bigamy,  the  first 
wife  is  not  a  competent  witness  against  the  accused,  she  is  prohibited 
from  proving  the  fact  of  her  marriage,  her  mouth  is  stopped  against  him, 


15 

while  with  strange   inconsistency  she  is  allowed   to   prove  the  fact  in  a 
collateral  suit  between  third  persons! 

As  early  as  21  Jac.  1,  C.  19,  commissioners  in  bankruptcy  were 
authorized  to  examine  the  bankrupt's  wife  to  discover  any  property  con- 
cealed by  him;  and  the  provision  was  re-enacted  under  George  IV.  The 
examination  of  the  bankrupt  and  wife  in  a  modified  form  was  retained 
under  the  present  Queen  of  England.  The  County  Courts,  act  9  and  10, 
Victoria,  which  rendered  parties  to  suits  competent  witnesses  in  those 
courts,  extended  "  to  their  wives  and  all  other  persons:"  and  finally  the 
statute  of  1853,  16  and  17  Victoria,  C.  99,  (Lord  Brougham's  act,)  not 
overlooking  the  temptation,  naturally  arising  out  of  the  marriage  connec- 
tion, to  induce  husband  and  wife  to  favor  each  other,  but  considering  it, 
like  any  other  known  bias,  to  be  guarded  against  and  allowed  for — 
enacted  that  husband  and  wife  should  be  competent  witnesses  for  and 
against  each  other  in  all  civil  cases,  except  in  proceedings  in  consequence 
of  adultery;  but  they  were  not  competent  in  any  criminal  proceedings 
against  each  other,  nor  compellable  to  disclose  any  communication  made  by 
one  to  the  other  during  the  marriage.  This  statute  has  been  substantially 
copied  and  adopted  by  the  leading  States  of  the  late  Union,  and  its  pro- 
visions are  embodied  in  the  bill  referred  to  the  Committee.  They  are 
recommended  to  the  adoption  of  the  Senate,  as  founded  in  principle  and 
sanctioned  by  experience. 

If  the  reasoning  in  this  report  is  correct,  it  necessarily  follows  that  the 
rule  of  our  Civil  Code  which  excludes  the  testimony  of  ascendants  and 
descendants  for  or  against  each  other,  should  be  repealed.  The  rule  does 
not  prevail  in  criminal  cases.  Pride,  passion,  affection,  friendship,  blood 
relationship,  the  love  of  parents  and  of  children,  are  no  disqualification  of 
a  witness  in  a  criminal  prosecution  affecting  the  life,  liberty,  property  or 
honor  of  the  accused.  But  let  the  case  be  a  civil  one  involving  a  claim 
of  twenty  dollars,  and  our  law  will  not  permit  an  ascendant  or  descendant 
to  testify  for  or  against  each  other  when  a  party  to  the  suit.  Are  there 
not  the  same  means  of  ascertaining  whether  the  father  or  son  tells  the 
truth  in  a  civil  suit  and  in  a  criminal  suit?  If  admitted  as  a  witness  in 
the  latter,  ought  he  not  also  to  be  admitted  in  the  former  case  ?  Can  not 
the  weight  of  his  evidence  be  equally  considered  in  each  case  ?  The 
Committee  are  of  opinion  that  the  proposed  alteration,  which  will  admit 
the  evidence  of  ascendants  and  descendants  in  civil  as  well  as  in  criminal 
cases,  should  be  made. 

It  remains  for  the  Committee  to  examine  the  rules  which  exclude  the 
testimony  of  witnesses  who  do  not  believe  in  the  existence  of  a  God  and  a 
future  state  of  rewards  and  punishments,  and  of  witnesses  who  have  been 
convicted  of  any  infamous  offense. 


16 

The  sanctions  by  which  mendacity  is  restrained  and  truth  is  secured — 
natural,  moral,  religious,  and  political — have  been  pointed  out  already  :  the 
difficulty  of  devising  a  falsehood  that  will  pass  examination  in  a  court,  the 
fear  of  legal  punishment,  the  fear  of  disgrace  and  loss  of  character,  the  pain  of 
falsehood  and  injustice,  the  dread  of  future  punishment.  Of  these  sanctions, 
one  only — the  religious  sanction — has  no  influence  on  the  mind  of  the 
atheist.  The  other  sanctions  operate  with  full  force  upon  him.  "Atheism," 
says  Lord  Bacon,  "  leaves  a  man  to  sense,  to  philosophy,  to  natural  piety, 
to  laws,  to  reputation :  all  which  may  be  guides  to  an  outward  moral  virtue, 
though  religion  were  not." 

Ou"-ht  atheism,  then,  and  other  forms  of  infidelity  which  deny  all  exor- 
cise of  divine  power  in  punishing  falsehood,  to  be  recognized  as  a  sufficient 
ground  to  render  a  person  incompetent  to  testify  ?  The  Committee  think 
they  ought  not. 

The  law  presumes  that  every  man  brought  up  in  a  Christian  land,  where 
God  is  generally  acknowledged,  does  believe  in  Him  and  fear  Him.  The 
witness  himself  cannot  be  questioned  as  to  his  religious  belief,  because  this 
would  be  a  personal  scrutiny  into  the  state  of  his  faith  and  conscience 
foreign  to  the  spirit  of  our  institutions.  No  man  is  bound  to  avow  his  belief; 
but,  if  he  does  avow  it,  the  avowal  may  be  proved  like  any  other  fact,  by 
third  persons. 

Now  it  is  argued  by  Mr.  Bentham,  and  those  who  have  succeeded  him, 
"  He  who  runs  counter  to  the  religious  persuasions  of  the  community,  is 
sure  to  meet  with  much  obloquy  and  great  personal  inconvenience.  Suppose 
such  a  man  produced  as  a  witness.  In  a  conversation  with  several  persons, 
he  had  avowed  himself  to  be  an  atheist ;  and  had,  by  so  doing,  marred  the 
prospects  of  success  that  he  entertained  for  himself  and  his  family.  Nothing 
prevented  him  from  affirming  the  contrary  or  concealing  his  opinion  and 
escaping  the  injury  and  the  stigma  which  his  avowal  fastened  on  him,  but  a 
regard  for  truth  and  a  respect  for  his  own  character  in  society  and  in  his 
own  family.  This  is  deemed  a  sufficient  ground  to  disbelieve  him,  and  he  is 
rejected  as  incompetent  to  testify.  His  declaration  of  atheism  renders  him 
utterly  incompetent. 

We  read  of  conspirators  in  crime,  who,  in  order  to  secure  impunity,  bind 
each  other  by  solemn  oaths  never  to  reveal  the  part  taken  by  any  of  them  in 
the  peipetration  of  the  crime.  How  much  more  efficacious  is  the  mode  fur- 
nished by  this  rule  of  evidence.  Let  a  man,  who  proposes  to  join  in  com- 
mitting a  crime,  make  his  associates  avow  themselvas  to  be  atheists,  and  he 
will  be  perfectly  secure  as  against  them.  In  this  way,  any  knot  of  crimin- 
als may  combine  and  secure  impunity  :  and  any  man  whatever  may  get  rid 
of  the  inconvenience  of  giving  testimony.  A  man  is  indicted  for  a  crime. 
Paul  was  present  at  the  time  of  its  commission  and  knows  all  the  circum- 
stances. He  is  summoned  to  testify.  He  wishes  to  screen  the  culprit. 
He  declares  to  the  friends  of  the  prisoner,  or  to  other  persons,  that  he  is  an 


iv 

atheist,  aud  suggests  to  the  counsel  of  the  accused — uask  Primus,  Secundum, 
Tertius,  if  I  did  not  avow  myself  to  be  an  atheist.''  The  objection  is  taken, 
the  witness  is  dismissed,  the  culprit  is  set  free. 

Is  it  wise  to  leave  it  in  the  power  of  any  man,  whose  breast  is  the  reposi- 
tory, perhaps  the  sole  repository,  of  evidence  affecting  the  lives  and  fortunes 
of  others,  to  stifle  that  evidence  by  pretending  to  hold  erroneous  views  on 
the  subject  of  religion  ?  But  even  if  we  suppose  the  want  of  religious  faith 
to  be  genuine,  is  it  not  more  properly  an  objection  to  the  credit,  than  to  the 
competency  of  the  witness? 

In  England,  the  statute  6  and  7  Vict ,  C  22,  allowed  the  unsworn  testi- 
mony to  be  received  of  the  members  of  certain  barbarous  races  in  the  British 
Colonies,  who  are  described  in  that  statute,  u  as  destitute  of  the  knowledge 
of  God  and  of  any  religious  belie (,"  and  left  but  a  little  more  to  be  done  in 
order  to  destroy  the  mischievous  principle  of  the  old  law,  which  punished 
the  holder  of  obnoxious  opinions  by  rendering  him  incompetent  to  give 
evidence. 

Under  the  rule  which  rejects  the  testimony  of  persons  insensible  to  the 
obligations  of  au  oath,  the  law  excludes  infamous  persons — that  is  persons 
who  have  been  guilty  of  those  heinous  crimes,  which  men  generally  are  not 
found  to  commit,  unless  when  so  depraved  as  to  be  unworthy  of  credit  for 
truth.  It  is  unnecessary,  aud  it  would  be  somewhat  difficult  to  enumerate 
with  nicety  the  offenses  deemed  infamous  by  law.  In  order  to  test  the  pro- 
priety of  this  exclusion,  the  case  of  perjury  may  be  selected. 

Does  it  follow  that  a  man,  because  he  has  been  once  convicted  of  perjury 
and  suffered  the  penalty  of  the  law  therefor,  will,  whenever  he  may  be  called 
on  to  testify,  commit  another  perjury,  and  render  himself  liable  to  renewed 
punishment  ?  And  that,  too,  in  cases  where  no  motive  could  exist  or  be 
surmised  for  his  perjury  ?  Suppose  the  offense  to  have  been  committed  in 
the  folly  tide  of  youth,  under  motives  of  kindness  intermingled  with  temp- 
tations, and  to  have  been  repented  of  for  fifty  years.  Ought  this  to  be  im- 
puted to  hhn  after  living  half  a  century  of  virtue  and  truth?  And  must 
an  innocent  man,  who  has  no  other  witness  to  prove  the  groundlessness  of 
a  charge  against  him,  be  unjustly  condemned,  because  the  witness  was  guilty 
of  a  delinquency,  so  many  years  before  ?  All  exclusions  operate  as  a  punish- 
ment on  the  parties  who  need  the  testimony  excluded.  A  perjured  person 
cannot  be  a  witness  on  behalf  of  another  person,  but  may  in  behalf  of  him- 
self. In  his  own  cause,  he  may  make  any  affidavit  necessary  to  his  exculpation 
or  defense,  or  personal  protection ;  or  for  relief  against  an  irregular  judg- 
ment or  the  like.  And  in  the  very  teeth  of  the  rule  which  excludes  per- 
sons infamous,  "  rcpellitiu-  a  sacramento  infamis"  a  man  may,  in  legal 
strictness,  be  convicted  even  of  a  capital  offense,  on  the  unsupported  evi- 
dence of  a  person  avowing  himself  an  accomplice  in  his  crime,  who  is  taken 
out  of  jail  to  bear  testimony  against  his  companion  and  gives  his  testimouy 

*3  jc 


18 

in  vincnh's,  in  custody,  with  a  rope  round  his  neck,  being  liable  on  his  own 
confession  to  execution,  if  the  government  be  dissatisfied  with  his  conduct 
in  this  respect/' 

A  witness  of  depraved  and  abandoned  character — Mr.  Starkie  says — may 
not  be  unworthy  of  credit,  where  there  is  no  motive  for  misrepresentation ; 
for  there  is  a  constant  tendency  to  declare  the  truth,  which  is  never  wholly 
eradicated  even  from  the  most  vicious  minds;  and  the  danger  of  detection, 
and  the  risk  of  temporal  punishment  may  operate  as  restraints  upon  the 
most  unprincipled,  even  when  motives  of  veracity  of  a  higher  nature  are 
wanting. 

In  England,  all  objections  to  the  competency  of  witnesses  on  the  ground 
of  infamy,  have  been  removed  by  the  act  on  Evidence,  6  and  7,  Vic.  C.  85, 
Lord  Denman's  act,  which  declared]:  "  No  person  offered  as  a  witness  shall 
hereafter  be  excluded  by  reason  of  incapacity  from  crime,  from  giving  evi- 
dence in  any  Court,  but  every  person  so  offered  shall  be  admitted  to  give 
evidence,  notwithstanding  he  may  have  been  previously  convicted  of  any 
crime." 

The  committee  have  now  laid  before  the  Senate  the  theory  of  human 
nature  on  which  the  exclusionary  rules  of  evidence,  that  the  bill  proposes 
to  abolish,  are  based ;  and  have  shown  that  the  theory  is  false  and  degrading 
to  the  society  in  which  we  live,  while  the  rules  themselves  have  been  in  so 
many  particulars  impaired  and  overthrown  by  admitted  exceptions  conflict- 
ing with  them,  as  to  involve  the  law  upon  the  subject  in  obscurity,  doubt 
and  difficulty — to  obstruct  the  inquiry  after  truth  in  Courts  of  justice — to 
deny  to  innocence  the  proper  and  natural  means  of  protection,  and  in  many 
instances  to  secure  impunity  to  fraud  and  crime.  They  have  shown  that 
the  theory  and  the  rules  have  been  repudiated  and  repealed  in  England  and 
in  most  of  the  late  United  States  of  America,  and  that  the  true  prin- 
ciple of  evidence  is  that  now  adopted  in  the  Courts  of  those  countries — put 
everybody  on  the  stand  who  knows  anything  about  the  case,  and  let  the 
persons  appointed  to  decide  upon  the  facts  in  issue,  both  in  civil  and  criminal 
cases,  exercise  their  judgment  on  the  credit  of  the  witnesses  adduced,  and  on 
the  truth  of  their  testimony. 

In  stating  the  arguments  for  and  against  the  rules  now  existing,  the  com- 
mittee have  freely  used  the  language  employed  by  the  Courts,  and  by  the 
common  lawyers,  and  by  the  most  distinguished  advocates  of  reform. 

It  is  time  to  throw  off  the  trammels  and  prejudices  generated  by  the  long 
habit  of  thinking  and  acting  in  a  legal  routine,  and  to  legislate  upon  correct 
principles. 

It  certainly  would  be  desirable,  if  practicable,  to  have  perfect  witnesses  in 
every  case.  "  But  perfect  men  do  not  exist;  and  if  the  earth  were  covered 
with  them,  delinquents  would  not  send  for  them  to  be  witnesses  of  their  de- 
linquency.    The  legislator  then  has  this  option  and  no  other :  to  open    the 


19 

door  to  witnesses,  or  to  give  license  to  crimes.  For  all  purposes  he  must 
take  men  as  he  finds  then. ;  and  for  the  purposes  of  testimony,  he  must  take 
such  men  as  happen  to  see  and  know,  what,  had  it  depended  on  the  actors, 
would  not  have  been  seen  and  known  by  anybody." 

F.  S.  GOOPE,  Chairman. 

RANPELL  HUNT, 

A.  L.  TUCKER, 

E.  PHILLIPS, 

J.  S.  FLOURNOY. 


AN  ACT 

Relative  to  the  Law  of  Evidence. 

Whereas,  the  inquiry  after  truth  in  Courts  of  Justice  is  often  obstructed 
by  incapacities  created  by  the  present  law  of  evidence ;  and  whereas,  it  is 
desirable  that  full  information  as  to  the  facts  in  issue,  both  in  criminal  and 
in  civil  cases,  should  be  laid  before  the  persons  appointed  to  decide  upon 
them,  and  that  such  persons  should  exercise  their  judgment  on  the  credit  of 
the  witnesses  adduced  and  on  the  truth  of  their  testimony : 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  State  of  Louisiana,  in  General  Assembly  convened,  No  person  shall  be 
incompetent  as  a  witness  because  of  his  or  her  conviction  of  crime,  or  his  or 
her  interest  in  any  issue  or  question  before  any  Court  or  officer  authorized  to 
administer  oaths. 

Sec.  2.  Be  it  further  enacted,  a  v.,  Nothing  herein  shall  render  any  per- 
son, who  in  any  criminal  proceeding  is  charged  with  the  commission  of  any 
offense  against  law,  competent  or  compellable  to  give  evidence  for  or  against 
himself  or  herself,  or  shall  render  any  person  compellable  to  answer  any 
question  tending  to  criminate  himself  or  herself. 

Sec.  o.  Be  it  further  enacted,  <Cc,  Parties  shall  be  competent  and  com- 
pellable to  testify  on  behalf  of  themselves  or  of  others,  in  any  suit  or  other 
proceeding  pending  in  a  Court,  or  before  any  person  authorized  to  administer 
oaths.  And  the  husbands  and  wives  of  the  parties  shall,  except  as  herein- 
after excepted,  be  competent  and  compellable  to  testify  on  behalf  of  any 
party  to  the  suit  or  other  proceedings. 

Sec.  4.  Be  it  further  enacted,  <fcc.,  Nothing  herein  shall  render  any  hus- 
band compellable  to  give  evidence  for  or  against  his  wife,  or  any  wife  com- 
petent or  compellable  to  give  evidence  for  or  against  her  husband,  in  any 
criminal  proceeding,  or  in  any  proceeding  instituted  in  consequence  of 
adultery. 

Sec.  5.  Be  it  further  enacted,  &c.  No  husband  shall  be  competent  or 
compellable  to  disclose  any  communication  made  to  him  by  his  wife  during 
the  marriage,  and  no  wife  shall  be  competent  or  compellable  to  disclose  any 
communication  made  to  her  by  her  husband  during  the  marriage. 

Sec.  6.  Be  it  further  enacted,  Sfc,  Ascendants  and  descendants  shall  be 
severally  competent  witnesses  for  or  against  each  other,  in  all  suits  or  pro- 
ceedings, civil  or  criminal. 


Hollinger  Corp. 
pH8.5 


